The uproar on Bill 198 of 2021

Following a  Constitutional Court ruling in 2016, which said that only a court of law presided over by a magistrate or a judge can impose stiff administrative penalties, the Maltese Government is trying to pass through Parliament Bill 198 to amend the Interpretation Act for the purpose of regulating the interpretation of the classification of laws or punishments as criminal in nature.

What Bill 198 of 2021 is proposing is that such punishment need not be administered by a court of justice but by a public authority.

However, in 2018, the Constitutional Court also ruled that such access to a court should exist from the very first moment that proceedings are instituted. This meant that no public officer or authority could impose such penalties. Only a court of law could do so.

Several from different camps of society, especially experts in the legal profession, have said that this Bill 198 goes counter to the supreme law of the land, the Constitution of Malta.

Dr. Tonio Borg

Dr. Tonio Borg, who is a resident senior lecturer in public law at the University of Malta, and who served as the European Commissioner for Health and Consumer Policy, weighs in on this Bill:

“So, what is dangerous in this Bill, is not the Bill itself, but the precedent it may cause for the future. For example, a blue, red, yellow or green government, can say: a person under human rights does not include the child in the womb, or else it doesn’t include foreigners.  Or else a trade union doesn’t mean a trade union as we understand but a trade union for professionals only, or not of professionals. That is why it is dangerous. But the biggest admission that (this Bill) goes against the Constitution, is the Government’s own admission by trying to amend the Constitution first.The Justice Minister, Dr. Edward Zammit Lewis, defended the bill, saying that it outlined a clear cut way to “allow institutions to work” as fine-imposing regulatory bodies that are effective and dissuasive in the fight against money-laundering and organised crime, without having to recur to the courts on every instance.

The Chamber of Advocates has said that this was an attempt to stealthily change the supreme law of the land, the Constitution of Malta.

Zammit Lewis, first proposed a bill to amend the Constitution to allow bodies that are not a court of law to impose such penalties. This first attempt failed since such an amendment required the support of two-thirds of the members of the legislature; the Opposition – which was not consulted at any stage – was firmly against such an amendment.

After this, the Minister is now proposing to pass by a simple majority of one MP an amendment to the Interpretation Act, changing the meaning of what amounts to a criminal sanction. In so doing, he is neutralising the judgments of the highest court of the land.

Dr. Borg says that “When the Justice Minister saw he hadn’t a two thirds majority, and so the Bill failed to make it through the front door, it is now being pushed through the ventilator, in the sense that he is tabling (the proposal of) a law to destroy the effects of a Constitutional Court’s sentence, and I will explain how. And he does this instead of with a two thirds  majority, he does so by a simple majority of one.”  

The Nationalist Party said that the government wanted to use this amendment to bypass the two-thirds majority vote issue. The Opposition said it was taking this position because it believed that the parliament should not discuss and approve laws that are “manifestly unconstitutional” and that detract from the fundamental rights that every person enjoys under the Constitution.

Dr. Tonio Borg is of the opinion that during “recess, which is around two weeks, or two and a half weeks, when Parliament doesn’t convene, can be used by the Government and the Opposition to reach an agreement on this Bill. And the method is simple how this can be achieved: let’s make one law, by means of which these remaining seven public authorities – that can impose administrative fines – we let them compile the evidence, we let them investigate, we let them prosecute (the case), however the case is heard before the Court. There would be a Magistrate, no need for a Judge, there could be a Magistrate whose primary work would be to impose these administrative penalty fines. And like so, we would have a good law, we comply with the Constitutional Courts’ sentencing, and would be respecting the Constitution of Malta. Why am I saying this, because if this Bill goes through as it is, the day after it would be contested in Malta’s Constitutional Court.” 

Read more: Opinion: What’s at stake with Bill 198 of 2021